Good morning, and welcome to my latest Monday Morning Briefing. So much for celebrating decisions by the United States Supreme Court. I know, I’m getting political so early on a Monday morning, but you all know me already.
HOW DOES THE FALL OF ROE V WADE IMPACT THE WORKPLACE?
Let’s just dive right in. First, this is a topic high on a lot of people’s minds and tongues, so there is talk about it. And this is a very personal, political, emotional, religious, triggering subject for many. Which means that it is most likely a topic best left OUT of the workplace, at least, by employees during work times and work areas. THAT said, it may be hard to do that. I know I was in the office on Friday and had three different conversations with partners about the legal and constitutional law impact alone. So think about your own workplaces and how you want to manage this issue, depending on your business and industry. Will employees want to wear buttons or tee shirts? Is that an issue where you work? At a minimum, make sure that the people in power are being RESPECTFUL. Is this a conversation that you need to have with managers in advance? Most of you have policies about political speech in the workplace, but this may creep in regardless.
Next, does your business want or need to put out a statement to employees or the public about its stand on the issue? Especially if you are operating in multiple states, and in one of the 13 trigger states or 26 states that are poised to shortly change their stance on abortion options soon, you may want to provide a statement of how you are supporting your employees. Many large employers, including Disney, Netflix, Uber, Google, JPMorgan, Citigroup, Zillow and Dick’s Sporting Goods are among just some of the companies that have pledged to cover the travel cost of employees traveling out of state if their states no longer will permit abortions. Employees are very much looking to their employers in this time of uncertainty, especially as this coverage was seen as part of their health insurance benefits just a few days ago.
We are still in the early days of the Dobbs aftermath, and we are sure to see more fallout in the weeks, months and perhaps years ahead. Of course, these Briefings will take on a much darker tone if some of the precedential cases noted in Clarence Thomas’ concurrence start to fall, and we really do see the unraveling of other civil rights in our country.
PICKING UP AFTER VIKING RIVER CRUISES – LAWYERS BEING LAWYERS
Speaking of Supreme Court aftermath – we should still be basking in our post-Viking River Cruises afterglow, but it doesn’t really feel that way. I guess I was being a bit naïve in thinking that the plaintiff’s bar would simply walk away from PAGA so easily. Let’s face it, many of them still fight us on standard arbitration agreements, even though we always win (I mean, we always win). Part of the problem stems from the way in which the Supreme Court authored the majority opinion, very much crafting it around the language of the Viking River Cruises’ arbitration agreement. There is also the issue of Justice Sotomayor’s concurrence, which seems to leave the door open for California to potentially “fix” the issues pointed out in the majority opinion. I myself think that there is enough ambiguity in the decision that some of these trial court judges may just throw up their hands to the appellate courts when we make these motions to compel, saying they can’t decide how to sort out how to interpret the decision. And I am afraid that the California appellate justices would be pissed at the United States Supreme Court right now, as a lot of people are. They may just say “stop meddling in our state!”
I just feel like this case is going to bring out a lot of motion work. Which, let’s face it, a lot of other defense firms do not mind, either. It means more litigation. So back to work we all go. But, here is the good news. If we make a motion to compel arbitration and lose and have to appeal, the entire case is stayed while the appeal goes through. It just comes to a grinding halt. And no money gets spent on anything while the appeal process plays out, which can take years. So for anyone with a pending PAGA case, if that is what winds up happening, your case will just sit. And these plaintiff attorneys may get tired of bringing PAGA cases against people with class action waivers because of that. That IS what wound up happening with class actions, after a while. They became deterrents. So it is still worth having these waivers, everyone.
I am hopeful that if there is talk about reforming PAGA, they really do reform it, not just to get around Viking River Cruises, but to solve all the issues with the law in general. If anything good comes out of all this, maybe we can hope for that. Yes, I am the eternal optimist.
ONE MORE REMINDER ABOUT JULY 1 – MINIMUM WAGES GOING UP IN LOS ANGELES AND ELSEWHERE, AND WEHO DOES ITS THING
I know I have reminded you all about ALL the minimum wage hikes in ALL the areas (for ALL the minimum wage increases happening July 1, go back to this post) , but the most important thing is to know where you are located and where all your employees work! Los Angeles City – $16.04. Unincorporated County of LA, you are $15.96. But there are MANY others.
We do have a leave policy for those of you lucky employers doing business in West Hollywood – full time employees will get 96 hours of compensated leave and 80 hours of uncompensated leave. This is a relatively tricky law, and the lovely folks in WeHo actually amended it in late May, so if you read a review of it early this year, IT CHANGED! And it changed pretty radically. So if you’re trying to write your own, make sure you’re looking at the right law. Better yet, just contact us.
Speaking of new policies, several of you have reached out about whether you will need a new arbitration policy in light of Viking River Cruises. We will be tweaking our arbitration policy, but if you have the one we have been using in the last few years, you are probably fine. As I have been saying, we never carved PAGA out from our class and representative action waivers. And as always, if you have not updated your handbook in the last few years, for many reasons, contact us about doing so.
So I know I keep telling you all to keep breathing and give yourself and others grace. It’s times like this, I have to remind myself as well. But I have to say, since we are midway through this year, that the support I get from all of you is probably what keeps me going. You all are my lifeline. And who else can say that about their CLIENTS?? I really do feel blessed. Thank you.
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